JOHNY JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) Second accused in Crime No. 187/85 of the Aranmula Police Station, pending before the Judicial First Class Magistrate, Pathanamthitta is the petitioner. The prayer is to quash the proceedings invoking the inherent powers of this court. Second respondent is the defacto complainant and third respondent is the first accused in that case. First respondent is the State of Kerala.

(2.) Alleging commission of an offence punishable under 5. 409 read with section 34 I.P.C., the 2nd respondent filed a private complaint before the Judicial First Class Magistrate, Pathanamthitta against the third respondent and petitioner. Husband of the 2nd respondent is employed in Tehran. On the basis of the visa sent by her husband and valid upto 6-1-1984 she wanted to go to Tehran. The gist of her allegations in the complaint are these. Third respondent, falsely claiming to be an authorised travel agent, approached her with an offer to arrange ticket and received Rs. 6,844/- on 7-10-1983. Instead of arranging ticket, he temporarily misappropriated the amount and converted it to his own use after falsely informing her that ticket has been arranged. Ticket was arranged only on 28-12-1983 and hence she was not able to undertake the travel. Therefore the ticket was returned. The same was entrusted to the third respondent for getting refund but he said that refund could be had only through the petitioner through whom third respondent arranged the ticket. On 12-4-1984 the ticket was entrusted to the petitioner. After getting refund petitioner and third respondent, in furtherance of their common intention, misappropriated the amount and converted the same to their own use at first on the false pretext that refund has not been received and thereafter stating that the amount has been credited in the name of the third respondent. Petitioner is also the Director of a travel agency. The magistrate forwarded the complaint to the police under section 156 (3) of the Code of Criminal Procedure for investigation. Accordingly the case was registered and it is being investigated. Petitioner was arrested and produced before the magistrate and he is on interim bail granted by the magistrate.

(3.) The magistrate has not taken cognizance of the offence and without doing so he ordered police investigation under section 156 (3) of the Code. Now the question of taking cognizance may arise only when the report of investigation is filed under section 173(2) of the Code. Therefore the decisions reported in Sub-DivI. Magistrate, Delhi v. Ram Kali1 and Barja v. Metthal Ummi2 pointed out by the counsel for the petitioner do not arise for consideration at all.